Ashfin Muhammed v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 BAIL APPL. NO. 3936 OF 2024 ``` ``` CRIME NO.373/2024 OF ERNAKULAM NORTH POLICE STATION, ``` ## **`ERNAKULAM`** ## **`PETITIONER/ACCUSED:`** ``` ASHFIN MUHAMMED, AGED 24 YEARS ``` ``` S/O. AYOOB KHAN T.Y., THATHANPARA, PARATHODU P.O., KANJIRAPPALLY, KOTTAYAM, PIN - 686512 BY ADVS. N.SASI RASMI NAIR T. JITHENDRAN S. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 CIRCLE INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM, PIN – 682018`** ## **`SR.PUBLIC PROSECUTOR SMT. NEEMA T.V.`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.3936 of 2024 -:2:- Dated this the 26[th] day of July, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (‘Code’, for short), for an order of pre-arrest bail. 2. The petitioner is the 10[th] accused in Crime No.373/2024 of the Ernakulam North Police Station, Ernakulam, which is registered against ten accused persons, for allegedly committing the offences punishable under Section 370 read with Section 34 of the Indian Penal Code (in short, 'IPC') and Sections 5 (1)(a), 6 and 7 of the Immoral Traffic (Prevention Act), 1956. 3. The prosecution case, in brief, is that: the accused, in furtherance of their common intention, are engaged in human trafficking. They have obtained B.A.No.3936 of 2024 -:3:- license to run a home stay by the name ‘Olga’ (‘premises’, in short) at Kathrikadavu, Ernakulam in the name of the 10th accused. But, by suppressing facts, they have enticed women and were running a brothel in the said premises in contravention of the provisions of the Immoral Traffic (Prevention Act), 1956. On 01.03.2024, the Investigating Officer received a reliable information that the accused were indulging in prostitution at the said premises. Accordingly, the Investigating Officer conducted a search in the premises in the presence of local witnesses and women police officers. During the search, men and women were seen indulging in sexual intercourse in the rooms of the premises. It was learnt that the women were brought by the accused to run the brothel. There are incriminating materials to establish that the accused were committing the above offences. Thus, the accused have committed the above B.A.No.3936 of 2024 -:4:- offences. 4. Heard; Sri.N.Sasi, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to show that the petitioner has committed the offence as alleged against the other accused. The petitioner had taken the premises on lease from the owner of the building and then subleased the premises to the first accused. It was the first accused who had allegedly conducted the illegal activities in the building. The petitioner cannot be held responsible for the acts committed by the accused 1 to 8. The petitioner’s custodial is not and no interrogation necessary recovery is to be effected. Moreover, by the order in B.A.No.3936 of 2024 -:5:- B.A. No.2536/2024, this Court has granted an order of pre-arrest bail to the 9[th] accused. The petitioner is at par with the 9[th] accused. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the brothel was being run in the property that was taken on lease by the petitioner from the original owner named Navas. The investigation has revealed that the petitioner has received the proceeds of the illegal business. The petitioner is a highly influential person with financial power. If the petitioner is granted an order of pre-arrest bail, there is every likelihood of him prevailing and intimidating the witnesses and also tampering with evidence. The petitioner cannot draw analogy from the order of prearrest bail granted to the 9[th] accused, who was granted B.A.No.3936 of 2024 -:6:- an order because of his medical affliction, i.e., he is undergoing dialysis thrice a week. The petitioner’s custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. 7. The prosecution case against the petitioner is that, the alleged brothel was being conducted in the premises that was taken on lease by the petitioner from the owner of the building. In the said building, the accused 1 to 8 were running a brothel in violation of the provisions of the Immoral Traffic (Prevention Act),1956. The accused have also trafficked women and brought them to run the business. There are incriminating materials to substantiate the petitioner’s involvement in the crime. 8. The parameters to grant an order of pre-arrest bail have been succinctly laid down by the Hon’ble Supreme Court in **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] in the B.A.No.3936 of 2024 -:7:- ## following lines: 112. The following factors and parameters can be takeninto consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluaate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of B.A.No.3936 of 2024 -:8:- anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should beprevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 9. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly on considering the fact that the brothel was taken on lease by the petitioner from the owner, that the petitioner subleased the property to the first accused, there are materials to establish that the petitioner has received proceeds of the crime, although that is a matter to be investigated and ultimately decided at the time of trial, B.A.No.3936 of 2024 -:9:- I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. SD/- **C.S.DIAS,JUDGE** `rmm26/7/20` 24